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Mind the gap: A review of the right to privacy at the UN in 2015

Monday, January 18, 2016

In 2015 the United Nations' human rights mechanisms significantly increased their capacity to monitor and assess states' compliance with their obligations around the right to privacy. Notably, the Human Rights Council established the mandate of the Special Rapporteur on the right to privacy, filling a significant gap in the international human rights protection system. Meanwhile, the Human Rights Committee put surveillance laws and practices in a range of countries under close scrutiny, making key recommendations to remedy violations of the right to privacy, particularly in the context of communications surveillance.

These positive developments are in sharp contrast to the legislative expansion of surveillance powers that are contrary to human rights standards. At the same time that the UN has increased its attention on the right to privacy, some governments have been adopting laws which, in many cases, seek to legalise post facto the privacy invasive practices of their security services. A spate of new laws that expand digital surveillance powers and reduce safeguards below the standards of international human rights law have been adopted, or are in advanced stages of drafting, in countries such as Australia, China, Denmark, France, Kenya, the Netherlands, Pakistan, Switzerland and the United Kingdom, to name only a few.

2015: A good year for privacy at the UN

In March, the Human Rights Council adopted by consensus a resolution establishing the mandate of the Special Rapporteur on the right to privacy. Prof. Joseph Cannataci was subsequently appointed as the mandate holder in June.

The resolution that established the post gives a broad mandate to the Special Rapporteur, who is entrusted to promote the respect and protection of the right to privacy in all circumstances, wherever or however it is exercised. Amongst other things, the Special Rapporteur will monitor states' and companies' compliance with the right to privacy, investigate alleged violations, and make recommendations to ensure that this fundamental right is respected and protected.

In welcoming the appointment, Privacy International and our partner NGOs from around the world outlined some of the challenges we face in having the right to privacy recognised and protected in law and practice, ranging from unlawful state surveillance, to the ever expanding surveillance industry and companies' collection and use of personal data.

While the Special Rapporteur on privacy is the first and only UN mechanism specifically dedicated to the right to privacy, other UN human rights experts and bodies have heightened their attention on the issues of privacy, surveillance and new technologies.

The Special Rapporteur on freedom of expression dedicated his 2015 annual report to the Council on the issue of encryption and online anonymity. In the face of efforts by some states to gain the power to override encrypted communications in the name of combatting terrorism, the report considers how the use of increasingly popular encryption and anonymity tools and services can protect and promote human rights online, particularly the rights to freedom of expression and privacy. The report notes how “encryption and anonymity provide individuals and groups with a zone of privacy online to hold opinions and exercise freedom of expression without arbitrary and unlawful interference or attacks”.

Beyond adopting a resolution and appointing a dedicated Special Rapporteur, the Human Rights Council, through the Universal Periodic Review mechanism, has also increased scrutiny of the right to privacy in specific countries. In a positive development, some governments, such as Brazil, Czech Republic, Estonia, Germany, India, Liechtenstein, the Netherlands, Slovenia, Sweden, Switzerland, have begun to raise concerns about surveillance laws and practices of other countries, and have made recommendations related to issues of privacy and surveillance in the 2015 Universal Periodic Review sessions, including on Australia, Austria, Belarus, Kenya, Sweden, Turkey, and the USA. While many of these recommendations are still formulated in general terms, they constitute an important sign that the right to privacy is finally receiving due attention within the UPR framework. For example, Liechtenstein recommended that Kenya review its laws and policies in order to ensure that surveillance of digital communications is consistent with its international human rights obligations and is conducted on the basis of a legal framework which is publicly accessible, clear, precise and non-discriminatory. And the Netherlands recommended that Sweden implement reforms to comply with its obligations under EU law as set out in the International Principles on the Application of Human Rights to Communications Surveillance.

While reviewing states parties' implementation of the International Covenant on Civil and Political Rights in 2015, the Human Rights Committee focussed significantly on the laws and practices of surveillance. The Committee expressed serious concerns about surveillance powers in Canada, France, the Former Yugoslav Republic of Macedonia, the Republic of Korea, and the United Kingdom. In doing so, the Committee reaffirmed some very important principles, for example: that the right to privacy needs to be respected regardless of the nationality or location of individuals whose communications are under surveillance; that states should establish robust oversight systems over surveillance, interception and intelligence-sharing of personal communications activities; and that states must ensure there is judicial involvement in the authorisation of such measures in all cases, including in relation to communications data.

On France, the Committee expressed concerns that the Intelligence Law Bill gives the French intelligence agencies excessive, vaguely defined and highly intrusive surveillance powers, without adequate mechanisms of control and oversight. Regretfully, just as these concerns were published, the Bill was adopted into law. And only a few months later, another surveillance law, targeting “external” communications, was approved despite containing provisions violating the right to privacy.

The UN Human Rights Committee also criticised the current UK legal regime governing the interception of communications, noting that it allows for mass surveillance and lacks sufficient safeguards. A few months after these observations, the Home Secretary published the Investigatory Powers Bill, which seeks to expand the already overly broad powers of the UK intelligence and police services.

These two examples are a reminder that this is a crucial time in the fight for privacy. A global discourse on security and counter-terrorism that treats the privacy of individuals as an impediment to the pursuit of vaguely defined national security aims - wrongly arguing that we can have either security or privacy, but not both - risks widening the gap between States' legal and technological capabilities and applicable human rights standards.

The stakes are high, including for civil society. As noted by the UN Special Rapporteur on counter-terrorism and human rights in his report to the UN General Assembly in 2015, “mass surveillance powers, often justified on counter-terrorism grounds, have been used to target civil society groups, human rights defenders and journalists in a number of States."

Preview of 2016

Thanks to the work of civil society and UN human rights experts over the last few years, the right to privacy will remain a key focus of UN human rights bodies in 2016.

The Special Rapporteur on the right to privacy will present his first report to the Human Rights Council in March 2016 and then to the UN General Assembly in October 2016. The Human Rights Committee will review a number of countries where privacy and surveillance concerns are likely to be at issue, including Colombia, Morocco, New Zealand, Rwanda, South Africa and Sweden.

Privacy International also expects that the Universal Periodic Review in 2016 will consolidate and strengthen its recent progress in making specific recommendations related to the right to privacy.

Ultimately, 2016 will be a significant test of UN human rights bodies' ability to close the gap between effective protections for our right to privacy and the increasingly intrusive surveillance laws and practices of Governments around the world.